1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-29-1998

United States v. Brown

Precedential or Non-Precedential:

Docket 98-7057

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Recommended Citation

"United States v. Brown" (1998). 1998 Decisions. Paper 255.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/255
Filed October 29, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7057 

UNITED STATES OF AMERICA, 

v. 

KENNETH C. BROWN, 

 Appellant. 

APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

(D.C. No. 97-CR-00144) 

ARGUED AUGUST 4, 1998 

BEFORE: Nygaard, Alito, and Rendell, Circuit Judges. 

(Filed October 29, 1998) 

 Daniel I. Siegal 

 Office of the Federal Public Defender 

 Suite 306 

 100 Chestnut Street 

 Harrisburg, PA 17101 

 Attorney for Appellant 
 Theodore B. Smith, III 

 Office of the U.S. Attorney 

 Federal Building 

 228 Walnut Street 

 PO Box 11754 

 Harrisburg, PA 17108 

 Attorney for Appellee 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

Kenneth Brown appeals the district court's denial of his 

motion to suppress evidence discovered during a stop and 

frisk conducted by York City, Pennsylvania police officers. 

Brown claims that the stop and subsequent "pat-down" 

were not based on facts sufficient to support a warrantless 

stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). 

We have jurisdiction under 28 U.S.C. S 1291. We review the 

factual findings of the district court for clear error. See 

United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996) 

(citing Ornelas v. United States, 517 U.S. 690, 699-700, 116 

S. Ct. 1657, 1662-63 (1996)). We review the district court's 

conclusion that there was reason to conduct the Terry stop 

de novo. See id. We will affirm. 

I. 

At approximately 1:30 a.m. on January 24, 1996, York 

City police officers received a radio call of "shots fired" in 

the 700 block of West King Street--an area known as a 

"very high crime area." Shortly thereafter, a second radio 

transmission reported that two victims of the shooting had 

been taken away by a private vehicle. Officer Michael 

Koltunovich, a uniformed police officer in a marked police 

vehicle, immediately responded. As he approached the area, 

he saw five African American men walking in the vicinity of 

the reported crime scene along West Princess Street. Except 

for these five men, the streets were deserted. Koltunovich 

stopped his vehicle and asked the men to "hold up." Two 

men stopped, were frisked for weapons, questioned and 

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released. The other three men continued walking. 

Koltunovich radioed a description of the three men and 

stated that one (Brown) wore a black leather jacket and 

bright white knit cap. 

Uniformed Officer Todd Ross was also on patrol that

night in a marked police vehicle. As Ross responded to the 

"shots fired" call, he heard Koltunovich radio that three 

potential suspects were walking east along West Princess 

Street. Within seconds after receiving the radio 

transmission, Ross saw Brown on West Princess Street 

near the crime scene wearing a black leather jacket and 

bright white knit cap. When Ross stopped his vehicle, 

Brown turned and ran into an alley. Ross radioed this 

information. Koltunovich then radioed that he saw Brown 

enter Gus's Bar. Ross entered the bar and saw a white knit 

cap next to a man wearing a black leather jacket. The man 

stated that the cap was his and that he had a weapon. 

Koltunovich entered the bar and identified Brown as the 

person who had walked away from him earlier that night. 

The police officers frisked Brown and found an unloaded, 

sawed-off .22 caliber rifle. Brown was arrested and taken to 

the police station where they conducted a thorough search 

and found drugs, money and ammunition. A grand jury

indicted Brown for one count of possession of afirearm by 

a convicted felon in violation of 18 U.S.C. S 922(g)(1) and 

one count of possession of an unregistered sawed-off rifle in 

violation of 26 U.S.C. S 5861(d). Brown was not charged 

with the shootings. 

Brown moved to suppress: (1) his statement admitting 

possession of the firearm; (2) the firearm; (3) the

ammunition; and (4) the drugs. Brown claims that the 

officers lacked the reasonable suspicion required to conduct 

a warrantless stop and frisk. Brown argues that the only 

basis for the stop and frisk was that he fled from police and 

that this, without more, is insufficient to justify a Terry 

stop. The district court found that reasonable suspicion 

supported the Terry stop and denied the motion to 

suppress. Brown now appeals that order. 

II. 

In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 

(1968), the Supreme Court held that a police officer may 

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conduct a warrantless stop and frisk if specific and 

articulable facts, together with all rational inferences, 

suggest that the suspect was involved in criminal activity. 

This investigatory stop is short of an arrest and can be 

justified by "less than the probable cause necessary for an 

arrest." Roberson, 90 F.3d at 77. However, a mere "hunch" 

or "inchoate and unparticularized suspicion" cannot justify 

a stop and frisk under Terry. See Terry, 392 U.S. at 27, 88 

S. Ct. at 1883. Deference, however, is given to the officer's 

conclusions based on the officer's experience. See United 

States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984) (citing 

United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 

695 (1981)). An officer cannot conduct a Terry stop simply 

because criminal activity is afoot. See Terry, 392 U.S. at 29, 

88 S. Ct. at 1884. Instead, the officer must have a

particularized and objective basis for believing that the 

particular person is suspected of criminal activity. See 

United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 

690, 695 (1981). 

Brown contends that his flight from police is insufficient 

to support a Terry stop and frisk. We disagree.* We have 

held that flight combined with other factors may support a 

warrantless stop and frisk. See United States ex rel. 

Richardson v. Rundle, 461 F.2d 860, 863-64 (3d Cir. 1972). 

These other factors, apropos to Brown's stop include: (1) 

the reputation of an area for criminal activity, see Rickus, 

737 F.2d at 365; (2) a suspect's flight upon seeing his 

companion questioned and frisked by officers, see United 

States v. Embry, 546 F.2d 552, 555 (3d Cir. 1976); and (3) 

_________________________________________________________________ 

* Brown relies on LaFave, Search and Seizure, S 3.6(e) (3d Ed. 1997) 

(citing United States v. Margeson, 259 F. Supp. 256, 265 (E.D. Pa. 1966)) 

(stating that "[t]he flight of a person from the presence of police is not 

standing alone sufficient to establish probable cause"), and United States 

v. Young, 598 F.2d 296, 304 (D.C. Cir. 1979) (Robinson, J., concurring) 

(commenting that "association with a supposed criminal does not 

necessarily blossom into probable cause, simply because of subsequent 

flight from oncoming police"), for the proposition that flight, alone, 

cannot justify a Terry stop and frisk. These authorities, however, discuss 

flight in the context of establishing probable cause for an arrest. 

Additionally, United States v. Duffy, 796 F. Supp. 1252, 1258 (D. Minn. 

1992), which does hold that flight from police officers, without more, is 

insufficient to support a Terry pat-down, is not binding on us. 

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a suspect's attempts to elude police officers, see Rundle, 

461 F.2d at 864 (citing Sibron v. New York, 392 U.S. 40, 

66, 88 S. Ct. 1889, 1904 (1966)). 

In Rundle, we noted that 

 "deliberately furtive actions and flight at the approach 

 of strangers or law officers are strong indicia of mens 

 rea, and when coupled with specific knowledge on the 

 part of the officer relating the suspect to evidence of 

 crime, they are proper factors to be considered in the 

 decision to make an arrest." 

461 F.2d at 864 (quoting Sibron, 392 U.S. at 66, 88 S. Ct. 

at 1904). Rundle involved police officers on routine patrol in 

a high crime area who witnessed four youths running from 

a drug store around closing time. See id. at 862-64. The 

officers also knew that robberies generally occurred when 

stores opened or closed. See id. at 863. Therefore, based on 

their observances and experience, they concluded that "a 

crime was either being perpetrated or about to be 

perpetrated." Id. We held that the officers could have 

reasonably suspected that the youths committed a robbery 

and that the evidence obtained was admissible. See id. at 

864. 

This stop and frisk is similar. Koltunovich noticed five 

men walking in the vicinity of a reported crime scene. It 

was the middle of the night in the dead of winter and the 

streets were otherwise deserted. When Koltunovich 

approached, three men disregarded the officer's request to 

"hold up" and continued walking. Koltunovich then radioed 

a description of the men over the radio, stating that one 

man wore a black leather jacket and a bright white knit 

cap. Ross heard the broadcast and immediately saw a man 

fitting the description in the vicinity. When Ross began to 

approach, Brown ran away and attempted to elude him by 

ducking into an alleyway and a bar. These actions 

combined with the radioed information and surrounding 

circumstances are sufficient to justify an investigatory stop 

under Terry. 

Further, Officer Koltunovich did not make his original 

assessment of the suspects based solely on the fact that the 

men were coming from the area of the reported shooting. 

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The record indicates that the area was known as a "very 

high crime" area. The men were in close proximity to the 

crime scene a few minutes after the call of "shots fired" was 

received. It was late at night and these men were the only 

persons in the area. These factors, when considered in 

combination with the officers' experience, are also sufficient 

to warrant in investigative stop under Terry. See Rickus, 

737 F.2d at 365. 

III. 

Several specific and articulable factors contributed to the 

officers' decision that Brown could be a suspect in the West 

King Street shooting. Therefore, the evidence obtained 

during the Terry stop and frisk and subsequent police 

station search is admissible. Accordingly, we will affirm the 

district court's denial of Brown's motion to suppress. 

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RENDELL, Circuit Judge, dissenting: 

I must respectfully dissent because the majority opinion 

approves a stop-and-frisk of Mr. Brown based on "nothing 

more substantial than inarticulate hunches" as proscribed 

by Terry v. Ohio, 392 U.S. 1, 22 (1968). Mr. Brown was 

merely near the wrong place at the wrong time. The 

evidence established that, at 1:30 a.m., the defendant and 

four other males were spotted walking south on Belvedere 

and turned onto Princess Street, "one block over" from the 

area of 700 West King Street, where the shootings were 

reported to have occurred.* There was no evidence to 

connect these men to the crime other than their having 

been the only ones seen by the police on the street in the 

general vicinity. The record contained no evidence as to 

when the shootings had occurred, how much time had 

elapsed between the shootings and the sighting of the five 

black males, and no evidence that the perpetrators were 

black, male, or that they were on foot. In fact, all the police 

knew was that "shots had been fired in the 700 block of 

West King Street," and "two victims of the shooting had 

been taken by a private vehicle to City Hall." For all the 

police knew at the time, the incident could have been a 

shootout with no perpetrators other than those injured. 

Further, Brown did not flee when two of his companions 

were questioned; rather, two stopped, and the other three, 

including Brown, kept walking. He ran only later, when a 

police car kept pursuing him. While the majority opinion 

sidesteps the issue, flight alone, under these 

circumstances, should not provide probable cause for a 

Terry stop, because flight can be the result of legitimate 

concerns on the part of the person being pursued, and, on 

its own, does not indicate that criminal activity is afoot. 

See, e.g., United States v. Young, 598 F.2d 296, 304 (D.C. 

Cir. 1979) (Robinson, J., concurring); United States v. 

_________________________________________________________________ 

* Interestingly, a street map of York City shows the relevant portion of 

West King Street to be separated from Princess Street by several streets 

-- Light Alley, West Poplar Street, and School Place. See Mapquest, 

http://city.net/cgi/maps>. The record, however, contains only the 

officer's statement as to the geographic layout of the area. Appendix, 

p. 63. 

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Duffy, 796 F. Supp. 1252, 1258-59 (D. Minn. 1992); United 

States v. Margeson, 259 F. Supp. 256, 264 (E.D. Pa. 1966). 

While flight with more can justify a Terry stop, here there is 

nothing more. 

Law enforcement officers made Brown a suspect merely 

by virtue of reporting the color of his hat and coat. The 

instant situation is clearly distinguishable from both United 

States v. Embry and United States ex rel. Richardson v. 

Rundle, on which the majority rely. In those cases there 

were facts which, when taken together with reasonable 

inferences drawn from those facts, justified an intrusion. 

Here, not only are there no facts that connect Brown with 

criminal activity, but, moreover, there are no inferences 

which can reasonably be drawn from facts of record which 

could do so. As Judge Seitz cautioned in his dissent from 

the majority opinion in United States v. Embry: 

 Terry and its progeny do not license the police to stop 

 individuals in public places on a bare suspicion or an 

 intuition that they may be criminals, and it certainly 

 does not permit random stops in an effort to turn 

 something up. In every case, "the police officer must be 

 able to point to specific and articulable facts which, 

 taken together with reasonable inferences from those 

 facts, reasonably warrant the intrusion." 

546 F.2d 552, 558-59, citing Terry, 392 U.S. at 21.

Here, there are no such facts. We take a giant step

backward in our Fourth Amendment jurisprudence in 

giving our stamp of approval to the police conduct in this 

case. 

I would reverse. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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